State of New York
Department of State
Committee on Open Government

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the information presented in your
correspondence.

Dear Mr. Greenfield:

I have received your letter in which you raised issues concerning the Half Hollow Hills
School District process of school redistricting.

According to your letter:

"In addition to having presented ‘plans' from A through E to the
public but modifying and finalizing the plans between meetings in
secrecy (all the while impacting students' lives without their parents
knowing or being able to object), the Board, as its final act, presented
a plan denoted ‘E-3' at the final public meeting, but which was, [you]
recently learned, a different plan from that described to the public
using the same name. Thus, the vote was taken on a plan, which the
public knew as something different from what, in reality, it was. One
example was the movement of the redistricting line in [your]
neighborhood which, although described in the E-3 nomenclature
over several weeks as one street, actually turned out to be a different
street due to the Board's either changing the line after the vote (a real
possibility) or the Board's ‘hoodwinking' the public by using the
same E-3 name, but with different, and unknown parameters."

You have requested my views concerning the foregoing in relation to the Open Meetings
Law, and in this regard, I offer the following comments.

From my perspective, it is unclear when or whether meetings were held. However, it appears
that the Board took action in private by altering the location of the "E-3" designation as it originally
had been presented to the public. If meetings were held, either by means of an actual convening or
by phone or via email, for example, I believe that the Open Meetings Law would have been
implicated.

By way of background, it is emphasized that the definition of "meeting" [Open Meetings
Law, §102(1)] has been broadly interpreted by the courts. In a landmark decision rendered in 1978,
the Court of Appeals, the state's highest court, found that any gathering of a quorum of a public body
for the purpose of conducting public business is a "meeting" that must be convened open to the
public, whether or not there is an intent to take action and regardless of the manner in which a
gathering may be characterized [see Orange County Publications v. Council of the City of
Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)].

I point out that the decision rendered by the Court of Appeals was precipitated by contentions
made by public bodies that so-called "work sessions" and similar gatherings held for the purpose of
discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law.
In discussing the issue, the Appellate Division, whose determination was unanimously affirmed,
stated that:

"We believe that the Legislature intended to include more than the
mere formal act of voting or the formal execution of an official
document. Every step of the decision-making process, including the
decision itself, is a necessary preliminary to formal action. Formal
acts have always been matters of public record and the public has
always been made aware of how its officials have voted on an issue.
There would be no need for this law if this was all the Legislature
intended. Obviously, every thought, as well as every affirmative act
of a public official as it relates to and is within the scope of one's
official duties is a matter of public concern. It is the entire
decision-making process that the Legislature intended to affect by the
enactment of this statute" (60 AD 2d 409, 415).

The court also dealt with the characterization of meetings as "informal," stating that:

"The word 'formal' is defined merely as 'following or according with
established form, custom, or rule' (Webster's Third New Int.
Dictionary). We believe that it was inserted to safeguard the rights of
members of a public body to engage in ordinary social transactions,
but not to permit the use of this safeguard as a vehicle by which it
precludes the application of the law to gatherings which have as their
true purpose the discussion of the business of a public body" (id.).

Based upon the direction given by the courts, if a majority of the Board gathers to discuss
District business, collectively as a body and in their capacities as Board members, any such
gathering, in my opinion, would constitute a "meeting" subject to the Open Meetings Law.

Second, there is nothing in the Open Meetings Law that would preclude members of a public
body from conferring individually, by telephone, via mail or e-mail. However, a series of
communications between individual members or telephone calls among the members which results
in a collective decision, a meeting held by means of a telephone conference, or a vote taken by mail
or e-mail would in my opinion be inconsistent with law.

Based on relatively recent legislation, I believe that voting and action by a public body may
be carried out only at a meeting during which a quorum has physically convened, or during a
meeting held by videoconference. It is noted that the Open Meetings Law pertains to public bodies,
and §102(2) defines the phrase "public body" to mean:

"...any entity for which a quorum is required in order to conduct
public business and which consists of two or more members,
performing a governmental function for the state or for an agency or
department thereof, or for a public corporation as defined in section
sixty-six of the general construction law, or committee or
subcommittee or other similar body of such public body."

As amended, §102(1) of the Open Meetings Law defines the term "meeting" to mean "the
official convening of a public body for the purpose of conducting public business, including the use
of videoconferencing for attendance and participation by the members of the public body." Based
upon an ordinary dictionary definition of "convene", that term means:

In view of that definition and others, I believe that a meeting, i.e., the "convening" of a public body,
involves the physical coming together of at least a majority of the total membership of such a body,
i.e., the Board of Education, or a convening that occurs through videoconferencing. I point out, too,
that §103(c) of the Open Meetings Law states that "A public body that uses videoconferencing to
conduct its meetings shall provide an opportunity to attend, listen and observe at any site at which
a member participates."

The amendments to the Open Meetings Law in my view clearly indicate that there are only
two ways in which a public body may validly conduct a meeting. Any other means of conducting
a meeting, i.e., by telephone conference, by mail, or by e-mail, would be inconsistent with law.

As indicated earlier, the definition of the phrase "public body" refers to entities that are
required to conduct public business by means of a quorum. The term "quorum" is defined in §41
of the General Construction Law, which has been in effect since 1909. The cited provision, which
was also amended to include language concerning videoconferencing, states that:

"Whenever three of more public officers are given any power or
authority, or three or more persons are charged with any public duty
to be performed or exercised by them jointly or as a board or similar
body, a majority of the whole number of such persons or officers,
gathered together in the presence of each other or through the use of
videoconferencing, at a meeting duly held at a time fixed by law, or
by any by-law duly adopted by such board of body, or at any duly
adjourned meeting of such meeting, or at any meeting duly held upon
reasonable notice to all of them, shall constitute a quorum and not
less than a majority of the whole number may perform and exercise
such power, authority or duty. For the purpose of this provision the
words 'whole number' shall be construed to mean the total number
which the board, commission, body or other group of persons or
officers would have were there no vacancies and were none of the
persons or officers disqualified from acting."

Based on the foregoing, again, a valid meeting may occur only when a majority of the total
membership of a public body, a quorum, has "gathered together in the presence of each other or
through the use of videoconferencing." Moreover, only when a quorum has convened in the manner
described in §41 of the General Construction Law would a public body have the authority to carry
out its powers and duties. Consequently, it is my opinion that a public body may not take action or
vote by means of telephone calls or e-mail.

Conducting a vote or taking action via e-mail would, in my view, be equivalent to voting by
means of a series of telephone calls, and in the only decision dealing with a vote taken by phone, the
court found the vote to be a nullity. In Cheevers v. Town of Union (Supreme Court, Broome
County, September 3, 1998), which cited and relied upon an opinion rendered by this office, the
court stated that:

"...there is a question as to whether the series of telephone calls
among the individual members constitutes a meeting which would be
subject to the Open Meetings Law. A meeting is defined as ‘the
official convening of a public body for the purpose of conducting
public business' (Public Officers Law §102[1]). Although ‘not every
assembling of the members of a public body was intended to fall
within the scope of the Open Meetings Law [such as casual
encounters by members], ***informal conferences, agenda sessions
and work sessions to invoke the provisions of the statute when a
quorum is present and when the topics for discussion and decision are
such as would otherwise arise at a regular meeting' (Matter of
Goodson Todman Enter. v. City of Kingston Common Council, 153
AD2d 103, 105). Peripheral discussions concerning an item of public
business are subject to the provisions of the statute in the same
manner was formal votes (see, Matter of Orange County Publs. v.
Council of City of Newburgh, 60 AD2d 309, 415 Affd 45 NY2d
947).

"The issue was the Town's policy concerning tax assessment
reductions, clearly a matter of public business. There was no physical
gathering, but four members of the five member board discussed the
issue in a series of telephone calls. As a result, a quorum of members
of the Board were ‘present' and determined to publish the Dear
Resident article. The failure to actually meet in person or have a
telephone conference in order to avoid a ‘meeting' circumvents the
intent of the Open Meetings Law (see e.g., 1998 Advisory Opns
Committee on Open Government 2877). This court finds that
telephonic conferences among the individual members constituted a
meeting in violation of the Open Meetings Law..."

I direct your attention to the legislative declaration of the Open Meetings Law, §100, which
states in part that:

"It is essential to the maintenance of a democratic society that the
public business be performed in an open and public manner and that
the citizens of this state be fully aware of and able to observe the
performance of public officials and attend and listen to the
deliberations and decisions that go into the making of public policy.

Based on the foregoing, the Open Meetings Law is intended to provide the public with the right to
observe the performance of public officials in their deliberations. That intent cannot be realized if
members of a public body conduct public business as a body or vote by phone, by mail, or by e-mail.

The remaining area of inquiry involves a request made under the Freedom of Information
Law in February to which the Board has only responded in part. You indicated that you requested
a variety of records, including minutes, notes "or any written indication of how [your] street was
taken from one plan, put on another plan, removed from that plan and then put into the final
plan....together with the reports of any consultants on whose opinion they relied." As of the date of
your letter to this office, you had received only "copies of emails from community residents to the
Board, and nothing else..."

It is noted at the outset that the Freedom of Information Law provides direction concerning
the time and manner in which agencies must respond to requests. Specifically, §89(3) of the
Freedom of Information Law states in part that:

"Each entity subject to the provisions of this article, within five
business days of the receipt of a written request for a record
reasonably described, shall make such record available to the person
requesting it, deny such request in writing or furnish a written
acknowledgement of the receipt of such request and a statement of
the approximate date when such request will be granted or denied..."

Based on the foregoing, an agency must grant access to records, deny access or acknowledge
the receipt of a request within five business days of receipt of a request. When an acknowledgement
is given, it must include an approximate date indicating when it can be anticipated that a request will
be granted or denied.

I point out that there is no precise time period within which an agency must grant or deny
access to records. The time needed to do so may be dependent upon the volume of a request, the
possibility that other requests have been made, the necessity to conduct legal research, the search and
retrieval techniques used to locate the records and the like. In short, when an agency acknowledges
the receipt of a request because more than five business days may be needed to grant or deny a
request, so long as it provides an approximate date indicating when the request will be granted or
denied, and that date is reasonable in view of the attendant circumstances, I believe that the agency
would be acting in compliance with law.

Notwithstanding the foregoing, in my view, every law must be implemented in a manner that
gives reasonable effect to its intent, and I point out that in its statement of legislative intent, §84 of
the Freedom of Information Law states that "it is incumbent upon the state and its localities to extend
public accountability wherever and whenever feasible." Therefore, if records are clearly available
to the public under the Freedom of Information Law, or if they are readily retrievable, there may be
no basis for a lengthy delay in disclosure. As the Court of Appeals has asserted:

"...the successful implementation of the policies motivating the
enactment of the Freedom of Information Law centers on goals as
broad as the achievement of a more informed electorate and a more
responsible and responsive officialdom. By their very nature such
objectives cannot hope to be attained unless the measures taken to
bring them about permeate the body politic to a point where they
become the rule rather than the exception. The phrase 'public
accountability wherever and whenever feasible' therefore merely
punctuates with explicitness what in any event is implicit"
[Westchester News v. Kimball, 50 NY2d 575, 579 (1980)].

A recent judicial decision cited and confirmed the advice rendered by this office. In Linz v.
The Police Department of the City of New York (Supreme Court, New York County, NYLJ,
December 17, 2001), it was held that:

"In the absence of a specific statutory period, this Court concludes
that respondents should be given a ‘reasonable' period to comply
with a FOIL request. The determination of whether a period is
reasonable must be made on a case by case basis taking into account
the volume of documents requested, the time involved in locating the
material, and the complexity of the issues involved in determining
whether the materials fall within one of the exceptions to disclosure.
Such a standard is consistent with some of the language in the
opinions, submitted by petitioners in this case, of the Committee on
Open Government, the agency charged with issuing advisory
opinions on FOIL."

If neither a response to a request nor an acknowledgement of the receipt of a request is given
within five business days, if an agency delays responding for an unreasonable time after it
acknowledges that a request has been received, or if the acknowledgement of the receipt of a request
fails to include an estimated date for granting or denying access, a request may, in my opinion, be
considered to have been constructively denied [see DeCorse v. City of Buffalo, 239 AD2d 949, 950
(1997)]. In such a circumstance, I believe that the denial may be appealed in accordance with
§89(4)(a) of the Freedom of Information Law. That provision states in relevant part that:

"...any person denied access to a record may within thirty days appeal
in writing such denial to the head, chief executive, or governing body,
who shall within ten business days of the receipt of such appeal fully
explain in writing to the person requesting the record the reasons for
further denial, or provide access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not rendered
within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her administrative remedies and may initiate
a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v.
McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

Next, it is emphasized that the Freedom of Information Law pertains to existing records, and
that §89(3) states in part that an agency is not required to create a record in response to a request.
Insofar as existing records maintained by or for the District fall within the scope of your request, I
believe that the District is obliged to respond in a manner consistent with law. If records do not
exist, the District in my view should inform you of that finding in writing.

Lastly, when a request involves existing records, the Freedom of Information Law is based
upon a presumption of access. Stated differently, all records of an agency are available, except to
the extent that records or portions thereof fall within one or more grounds for denial appearing in
§87(2)(a) through (i) of the Law.
Here I point out that the Freedom of Information Law is applicable to all District records, for
§86(4) defines the term "record" expansively to mean:

Based on the definition, internal communications, notes and materials prepared for the District by
a consultant, for example, would constitute "records" that fall within the scope of the Freedom of
Information Law.

Records prepared by agency staff for internal agency use would constitute "intra-agency
materials" that fall within the scope of §87(2)(g). That provision permits an agency to withhold
records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by
the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-
agency or intra-agency materials may be withheld, portions of such materials consisting of statistical
or factual information, instructions to staff that affect the public, final agency policy or
determinations or external audits must be made available, unless a different ground for denial could
appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that
are reflective of opinion, advice, recommendation and the like could in my view be withheld.

It has been held by the Court of Appeals, the state's highest court, that records prepared for
an agency by a consultant are agency records that should be treated as if they were prepared by
agency staff. In a discussion of the issue of records prepared by consultants for agencies, the Court
stated that:

"Opinions and recommendations prepared by agency personnel may
be exempt from disclosure under FOIL as 'predecisional materials,
prepared to assist an agency decision maker***in arriving at his
decision' (McAulay v. Board of Educ., 61 AD 2d 1048, aff'd 48 NY
2d 659). Such material is exempt 'to protect the deliberative process
of government by ensuring that persons in an advisory role would be
able to express their opinions freely to agency decision makers
(Matter of Sea Crest Const. Corp. v. Stubing, 82 AD 2d 546, 549).

"In connection with their deliberative process, agencies may at times
require opinions and recommendations from outside consultants. It
would make little sense to protect the deliberative process when such
reports are prepared by agency employees yet deny this protection
when reports are prepared for the same purpose by outside
consultants retained by agencies. Accordingly, we hold that records
may be considered 'intra-agency material' even though prepared by an
outside consultant at the behest of an agency as part of the agency's
deliberative process (see, Matter of Sea Crest Constr. Corp. v.
Stubing, 82 AD 2d 546, 549, supra; Matter of 124 Ferry St. Realty
Corp. v. Hennessy, 82 AD 2d 981, 983)" [Xerox Corporation v. Town
of Webster, 65 NY 2d 131, 132-133 (1985)].

Based upon the foregoing, records prepared by agency staff or a consultant for an agency
may be withheld or must be disclosed based upon the same standards. It is emphasized that the
Court in Xerox specified that the contents of intra-agency materials determine the extent to which
they may be available or withheld, for it was held that:

"While the reports in principle may be exempt from disclosure, on
this record - which contains only the barest description of them - we
cannot determine whether the documents in fact fall wholly within
the scope of FOIL's exemption for 'intra-agency materials,' as claimed
by respondents. To the extent the reports contain 'statistical or factual
tabulations or data' (Public Officers Law section 87[2][g][i], or other
material subject to production, they should be redacted and made
available to the appellant" (id. at 133).

In sum, insofar as the materials at issue involve records communicated between or among
District officials or that were prepared for the District by a consultant, I believe that those portions
consisting of statistical or factual information, instructions to staff that affect the public or final
District policy or determinations must be disclosed.